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02/02/88 JACK W. FOZZARD v. STATE INDIANA

Filed: February 2, 1988.

JACK W. FOZZARD, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE LAKE COUNTY SUPERIOR COURT, The Honorable James C. Kimbrough, Judge, Cause No. 3CR-53-380-205.

Pivarnik, J.; Shepard, C.j., DeBruler, Givan, and Dickson, JJ., concur

Author: Pivarnik

PIVARNIK, J.

Jack W. Fozzard was found guilty by jury of murder and of being an habitual offender. The court sentenced him to an aggravated term of fifty (50) years on the murder conviction and enhanced the sentence by thirty (30) years for the habitual offender finding. Fozzard directly appeals raising the following issues for our review:

1. admissibility of tape recordings which detailed conversations between Fozzard and a confidential informant;

2. admissibility of certified records, during the habitual offender phase of the trial;

3. admissibility of State's exhibits 7 and 8, autopsy photographs.

The facts show that during the late evening hours of February 14, 1980, and the early morning hours of February 15, 1980, Fozzard was visiting the Capers Lounge, in Hammond, Indiana. While at the Capers Lounge, Fozzard and the deceased victim, Robert Alvarez, became involved in an argument concerning one of the female employees. To avoid the argument, Fozzard left the table where the argument was occurring and moved to another table in the bar. Shortly after the initial argument, Alvarez confronted Fozzard for a second time at which point Fozzard left the bar. Alvarez followed Fozzard outside and continued to argue. Fozzard told Alvarez to get into his car to avoid any further problems. Alvarez then allegedly lunged at Fozzard. Fozzard pulled a gun from his belt and shot Alvarez in the chest. Fozzard believed he had killed Alvarez. However, Alvarez called Fozzard's name and begged for mercy. Fozzard then walked over to Alvarez, shot him in the right temple and cut his throat.

I

Fozzard claims the trial court erred in admitting into evidence the testimony and tapes of conversations which took place between him and a confidential informant, in that the evidence was in violation of his Fourth Amendment rights.

A paid government informant signed a written consent to be fitted with an electronic eavesdropping device and to have his conversations be transmitted by the device and recorded by other electronic devices. Thus, on March 15, 1980, police agents concealed a radio transmission device on the informant. On that date, Fozzard was a guest in the informant's residence, at a trailer park in Louisiana. During the evening, the informant engaged Fozzard in conversations which were broadcast to police agents hidden nearby. The agents recorded the conversations and later, the recordings were transcribed. Edited versions of the original recordings were made of the conversations between the informant and Fozzard concerning the death of Robert Alvarez. The informant did not testify at trial, but the edited recordings and testimony of the electronically eavesdropping government agents were brought before the jury over Fozzard's pre-trial motions in limine and objections at trial.

Fozzard urges this Court to overrule United States v. White (1971), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, reh. denied 402 U.S. 990, 91 S.Ct. 1643, 29 L.Ed.2d 156, by applying Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. In Katz v. United States, government agents, without the defendant's consent or knowledge, attached a listening device to the outside of a public telephone booth and recorded the defendant's end of his telephone conversations. In declaring the recordings inadmissible in evidence in the absence of a warrant authorizing the surveillance, the Court held that the absence of physical intrusion into the telephone booth did not justify using electronic devices in listening to and recording Katz's words, thereby violating the privacy on which he justifiably relied while using the telephone in those circumstances.

Katz was later distinguished as involving no revelation to the Government by a party to conversations with the defendant. Further, the Katz Court did not indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police. United States v. White, 91 S.Ct. at 1124-25. In White, where a radio transmitter was concealed on an informant with the informant's knowledge, and where conversations between the informant and the defendant at various locations, including the defendant's home, were overheard when the frequency of the transmitter was monitored, without warrant, by government agents, who testified as to the conversations at defendant's trial, there was no violation of defendant's Fourth Amendment right to be secure against unreasonable searches and seizures. The White Court stated:

A police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. For constitutional purposes no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a ...


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